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June 28, 2012. - Ordered to be printed
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(b) EFFECT AND APPLICATION.—Nothing in this subtitle or any
amendment made by this subtitle—
(1) supersedes or otherwise affects any other provision of
Federal law, including, in particular, laws providing recovery
for injury to natural resources under the Oil Pollution Act of
1990 (33 U.S.C. 2701 et seq.) and laws for the protection of
public health and the environment; or
(2) applies to any fine collected under section 311 of the
Federal Water Pollution Control Act (33 U.S.C. 1321) for any
incident other than the Deepwater Horizon oil spill.
(c) USE OF FUNDS.—Funds made available under this subtitle
may be used only for eligible activities specifically authorized by
this subtitle and the amendments made by this subtitle.
SEC. 1607. RESTORATION AND PROTECTION ACTIVITY LIMITATIONS.
(a) WILLING SELLER.—Funds made available under this subtitle
may only be used to acquire land or interests in land by purchase,
exchange, or donation from a willing seller.
(b) ACQUISITION OF FEDERAL LAND.—None of the funds made
available under this subtitle may be used to acquire land in fee title
by the Federal Government unless—
(1) the land is acquired by exchange or donation; or
(2) the acquisition is necessary for the restoration and protection
of the natural resources, ecosystems, fisheries, marine
and wildlife habitats, beaches, and coastal wetlands of the Gulf
Coast region and has the concurrence of the Governor of the
State in which the acquisition will take place.
SEC. 1608. INSPECTOR GENERAL.
The Office of the Inspector General of the Department of the
Treasury shall have authority to conduct, supervise, and coordinate
audits and investigations of projects, programs, and activities funded
under this subtitle and the amendments made by this subtitle.
TITLE II—AMERICA FAST FORWARD
FINANCING INNOVATION
SEC. 2001. SHORT TITLE.
This title may be cited as the "America Fast Forward Financing
Innovation Act of 2012".
SEC. 2002. TRANSPORTATION INFRASTRUCTURE FINANCE AND INNOVATION
ACT OF 1998 AMENDMENTS.
Sections 601 through 609 of title 23, United States Code, are
amended to read as follows:
"§ 601. Generally applicable provisions
"(a) DEFINITIONS.—In this chapter, the following definitions
apply:
"(1) CONTINGENT COMMITMENT.—The term 'contingent commitment'
means a commitment to obligate an amount from future
available budget authority that is—
"(A) contingent on those funds being made available in
law at a future date; and
"(B) not an obligation of the Federal Government.
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"(2) ELIGIBLE PROJECT COSTS.—The term 'eligible project
costs' means amounts substantially all of which are paid by, or
for the account of, an obligor in connection with a project, including
the cost of—
"(A) development phase activities, including planning,
feasibility analysis, revenue forecasting, environmental review,
permitting, preliminary engineering and design work,
and other preconstruction activities;
"(B) construction, reconstruction, rehabilitation, replacement,
and acquisition of real property (including land
relating to the project and improvements to land), environmental
mitigation, construction contingencies, and acquisition
of equipment; and
"(C) capitalized interest necessary to meet market requirements,
reasonably required reserve funds, capital
issuance expenses, and other carrying costs during construction.
"(3) FEDERAL CREDIT INSTRUMENT.—The term 'Federal
credit instrument' means a secured loan, loan guarantee, or line
of credit authorized to be made available under this chapter
with respect to a project.
"(4) INVESTMENT-GRADE RATING.—The term 'investment grade
rating' means a rating of BBB minus, Baa3, bbb minus,
BBB (low), or higher assigned by a rating agency to project obligations.
"(5) LENDER.—The term 'lender' means any non-Federal
qualified institutional buyer (as defined in section 230.144A(a)
of title 17, Code of Federal Regulations (or any successor regulation),
known as Rule 144A(a) of the Securities and Exchange
Commission and issued under the Securities Act of 1933 (15
U.S.C. 77a et seq.)), including—
"(A) a qualified retirement plan (as defined in section
4974(c) of the Internal Revenue Code of 1986) that is a
qualified institutional buyer; and
"(B) a governmental plan (as defined in section 414(d)
of the Internal Revenue Code of 1986) that is a qualified institutional
buyer.
"(6) LETTER OF INTEREST.—The term 'letter of interest'
means a letter submitted by a potential applicant prior to an
application for credit assistance in a format prescribed by the
Secretary on the website of the TIFIA program that—
"(A) describes the project and the location, purpose,
and cost of the project;
"(B) outlines the proposed financial plan, including the
requested credit assistance and the proposed obligor;
"(C) provides a status of environmental review; and
"(D) provides information regarding satisfaction of
other eligibility requirements of the TIFIA program.
"(7) LINE OF CREDIT.—The term 'line of credit' means an
agreement entered into by the Secretary with an obligor under
section 604 to provide a direct loan at a future date upon the
occurrence of certain events.
"(8) LIMITED BUYDOWN.—The term 'limited buydown'
means, subject to the conditions described in section
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603(b)(4)(C), a buydown of the interest rate by the obligor if the
interest rate has increased between—
"(A)(i) the date on which a project application acceptable
to the Secretary is submitted; or
"(ii) the date on which the Secretary entered into a
master credit agreement; and
"(B) the date on which the Secretary executes the Federal
credit instrument.
"(9) LOAN GUARANTEE.—The term 'loan guarantee' means
any guarantee or other pledge by the Secretary to pay all or
part of the principal of and interest on a loan or other debt obligation
issued by an obligor and funded by a lender.
"(10) MASTER CREDIT AGREEMENT.—The term 'master credit
agreement' means an agreement to extend credit assistance for
a program of projects secured by a common security pledge
(which shall receive an investment-grade rating from a rating
agency), or for a single project covered under section 602(b)(2)
that would—
"(A) make contingent commitments of 1 or more secured
loans or other Federal credit instruments at future
dates, subject to the availability of future funds being made
available to carry out this chapter;
"(B) establish the maximum amounts and general
terms and conditions of the secured loans or other Federal
credit instruments;
"(C) identify the 1 or more dedicated non-Federal revenue
sources that will secure the repayment of the secured
loans or secured Federal credit instruments;
"(D) provide for the obligation of funds for the secured
loans or secured Federal credit instruments after all requirements
have been met for the projects subject to the
master credit agreement, including—
"(i) completion of an environmental impact statement
or similar analysis required under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.);
"(ii) compliance with such other requirements as
are specified in section 602(c); and
"(iii) the availability of funds to carry out this
chapter; and
"(E) require that contingent commitments result in a financial
close and obligation of credit assistance not later
than 3 years after the date of entry into the master credit
agreement, or release of the commitment, unless otherwise
extended by the Secretary.
"(11) OBLIGOR.—The term 'obligor' means a party that—
"(A) is primarily liable for payment of the principal of
or interest on a Federal credit instrument; and
"(B) may be a corporation, partnership, joint venture,
trust, or governmental entity, agency, or instrumentality.
"(12) PROJECT.—The term 'project' means—
"(A) any surface transportation project eligible for Federal
assistance under this title or chapter 53 of title 49;
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"(B) a project for an international bridge or tunnel for
which an international entity authorized under Federal or
State law is responsible;
"(C) a project for intercity passenger bus or rail facilities
and vehicles, including facilities and vehicles owned by
the National Railroad Passenger Corporation and components
of magnetic levitation transportation systems; and
"(D) a project that—
"(i) is a project—
"(I) for a public freight rail facility or a private
facility providing public benefit for highway
users by way of direct freight interchange between
highway and rail carriers;
"(II) for an intermodal freight transfer facility;
"(III) for a means of access to a facility described
in subclause (I) or (II);
"(IV) for a service improvement for a facility
described in subclause (I) or (II) (including a capital
investment for an intelligent transportation
system); or
"(V) that comprises a series of projects described
in subclauses (I) through (IV) with the
common objective of improving the flow of goods;
"(ii) may involve the combining of private and public
sector funds, including investment of public funds
in private sector facility improvements;
"(iii) if located within the boundaries of a port terminal,
includes only such surface transportation infrastructure
modifications as are necessary to facilitate direct
intermodal interchange, transfer, and access into
and out of the port; and
"(iv) is composed of related highway, surface transportation,
transit, rail, or intermodal capital improvement
projects eligible for assistance under this section
in order to meet the eligible project cost threshold
under section 602, by grouping related projects together
for that purpose, subject to the condition that the credit
assistance for the projects is secured by a common
pledge.
"(13) PROJECT OBLIGATION.—The term 'project obligation'
means any note, bond, debenture, or other debt obligation
issued by an obligor in connection with the financing of a
project, other than a Federal credit instrument.
"(14) RATING AGENCY.—The term 'rating agency' means a
credit rating agency registered with the Securities and Exchange
Commission as a nationally recognized statistical rating
organization (as that term is defined in section 3(a) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c(a))).
"(15) RURAL INFRASTRUCTURE PROJECT.—The term 'rural
infrastructure project' means a surface transportation infrastructure
project located in any area other than a city with a
population of more than 250,000 inhabitants within the city
limits.
"(16) SECURED LOAN.—The term 'secured loan' means a direct
loan or other debt obligation issued by an obligor and
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funded by the Secretary in connection with the financing of a
project under section 603.
"(17) STATE.—The term 'State' has the meaning given the
term in section 101.
"(18) SUBSIDY AMOUNT.—The term 'subsidy amount' means
the amount of budget authority sufficient to cover the estimated
long-term cost to the Federal Government of a Federal credit instrument—
"(A) calculated on a net present value basis; and
"(B) excluding administrative costs and any incidental
effects on governmental receipts or outlays in accordance
with the Federal Credit Reform Act of 1990 (2 U.S.C. 661
et seq.).
"(19) SUBSTANTIAL COMPLETION.—The term 'substantial
completion' means—
"(A) the opening of a project to vehicular or passenger
traffic; or
"(B) a comparable event, as determined by the Secretary
and specified in the credit agreement.
"(20) TIFIA PROGRAM.—The term 'TIFIA program' means
the transportation infrastructure finance and innovation program
of the Department.
"(b) TREATMENT OF CHAPTER.—For purposes of this title, this
chapter shall be treated as being part of chapter 1.
"§ 602. Determination of eligibility and project selection
"(a) ELIGIBILITY.—
"(1) IN GENERAL.—A project shall be eligible to receive credit
assistance under this chapter if—
"(A) the entity proposing to carry out the project submits
a letter of interest prior to submission of a formal application
for the project; and
"(B) the project meets the criteria described in this subsection.
"(2) CREDITWORTHINESS.—
"(A) IN GENERAL.—To be eligible for assistance under
this chapter, a project shall satisfy applicable creditworthiness
standards, which, at a minimum, shall include—
"(i) a rate covenant, if applicable;
"(ii) adequate coverage requirements to ensure repayment;
"(iii) an investment grade rating from at least 2
rating agencies on debt senior to the Federal credit instrument;
and
"(iv) a rating from at least 2 rating agencies on the
Federal credit instrument, subject to the condition that,
with respect to clause (iii), if the total amount of the
senior debt and the Federal credit instrument is less
than $75,000,000, 1 rating agency opinion for each of
the senior debt and Federal credit instrument shall be
sufficient.
"(B) SENIOR DEBT.—Notwithstanding subparagraph
(A), in a case in which the Federal credit instrument is the
senior debt, the Federal credit instrument shall be required
to receive an investment grade rating from at least 2 rating
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agencies, unless the credit instrument is for an amount less
than $75,000,000, in which case 1 rating agency opinion
shall be sufficient.
"(3) INCLUSION IN TRANSPORTATION PLANS AND PROGRAMS.—
A project shall satisfy the applicable planning and
programming requirements of sections 134 and 135 at such
time as an agreement to make available a Federal credit instrument
is entered into under this chapter.
"(4) APPLICATION.—A State, local government, public authority,
public-private partnership, or any other legal entity undertaking
the project and authorized by the Secretary shall submit
a project application that is acceptable to the Secretary.
"(5) ELIGIBLE PROJECT COSTS.—
"(A) IN GENERAL.—Except as provided in subparagraph
(B), to be eligible for assistance under this chapter, a
project shall have eligible project costs that are reasonably
anticipated to equal or exceed the lesser of—
"(i)(I) $50,000,000; or
"(II) in the case of a rural infrastructure project,
$25,000,000; and
"(ii) 331⁄3 percent of the amount of Federal highway
assistance funds apportioned for the most recently
completed fiscal year to the State in which the project
is located.
"(B) INTELLIGENT TRANSPORTATION SYSTEM
PROJECTS.—In the case of a project principally involving
the installation of an intelligent transportation system, eligible
project costs shall be reasonably anticipated to equal
or exceed $15,000,000.
"(6) DEDICATED REVENUE SOURCES.—The applicable Federal
credit instrument shall be repayable, in whole or in part,
from—
"(A) tolls;
"(B) user fees;
"(C) payments owing to the obligor under a public-private
partnership; or
"(D) other dedicated revenue sources that also secure or
fund the project obligations.
"(7) PUBLIC SPONSORSHIP OF PRIVATE ENTITIES.—In the
case of a project that is undertaken by an entity that is not a
State or local government or an agency or instrumentality of a
State or local government, the project that the entity is undertaking
shall be publicly sponsored as provided in paragraph
(3).
"(8) APPLICATIONS WHERE OBLIGOR WILL BE IDENTIFIED
LATER.—A State, local government, agency or instrumentality of
a State or local government, or public authority may submit to
the Secretary an application under paragraph (4), under which
a private party to a public-private partnership will be—
"(A) the obligor; and
"(B) identified later through completion of a procurement
and selection of the private party.
"(9) BENEFICIAL EFFECTS.—The Secretary shall determine
that financial assistance for the project under this chapter
will—
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"(A) foster, if appropriate, partnerships that attract
public and private investment for the project;
"(B) enable the project to proceed at an earlier date
than the project would otherwise be able to proceed or reduce
the lifecycle costs (including debt service costs) of the
project; and
"(C) reduce the contribution of Federal grant assistance
for the project.
"(10) PROJECT READINESS.—To be eligible for assistance
under this chapter, the applicant shall demonstrate a reasonable
expectation that the contracting process for construction of
the project can commence by not later than 90 days after the
date on which a Federal credit instrument is obligated for the
project under this chapter.
"(b) SELECTION AMONG ELIGIBLE PROJECTS.—
"(1) ESTABLISHMENT.—The Secretary shall establish a rolling
application process under which projects that are eligible to
receive credit assistance under subsection (a) shall receive credit
assistance on terms acceptable to the Secretary, if adequate
funds are available to cover the subsidy costs associated with
the Federal credit instrument.
"(2) ADEQUATE FUNDING NOT AVAILABLE.—If the Secretary
fully obligates funding to eligible projects in a fiscal year, and
adequate funding is not available to fund a credit instrument,
a project sponsor of an eligible project may elect to enter into
a master credit agreement and wait until the earlier of—
"(A) the following fiscal year; and
"(B) the fiscal year during which additional funds are
available to receive credit assistance.
"(3) PRELIMINARY RATING OPINION LETTER.—The Secretary
shall require each project applicant to provide a preliminary
rating opinion letter from at least 1 rating agency—
"(A) indicating that the senior obligations of the
project, which may be the Federal credit instrument, have
the potential to achieve an investment-grade rating; and
"(B) including a preliminary rating opinion on the Federal
credit instrument.
"(c) FEDERAL REQUIREMENTS.—
"(1) IN GENERAL.—In addition to the requirements of this
title for highway projects, the requirements of chapter 53 of title
49 for transit projects, and the requirements of section 5333(a)
of title 49 for rail projects, the following provisions of law shall
apply to funds made available under this chapter and projects
assisted with those funds:
"(A) Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d et seq.).
"(B) The National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
"(C) The Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. 4601 et
seq.).
"(2) NEPA.—No funding shall be obligated for a project
that has not received an environmental categorical exclusion, a
finding of no significant impact, or a record of decision under
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the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.).
"(d) APPLICATION PROCESSING PROCEDURES.—
"(1) NOTICE OF COMPLETE APPLICATION.—Not later than 30
days after the date of receipt of an application under this section,
the Secretary shall provide to the applicant a written notice
to inform the applicant whether—
"(A) the application is complete; or
"(B) additional information or materials are needed to
complete the application.
"(2) APPROVAL OR DENIAL OF APPLICATION.—Not later than
60 days after the date of issuance of the written notice under
paragraph (1), the Secretary shall provide to the applicant a
written notice informing the applicant whether the Secretary
has approved or disapproved the application.
"(e) DEVELOPMENT PHASE ACTIVITIES.—Any credit instrument
secured under this chapter may be used to finance up to 100 percent
of the cost of development phase activities as described in section
601(a)(1)(A).
"§ 603. Secured loans
"(a) IN GENERAL.—
"(1) AGREEMENTS.—Subject to paragraphs (2) and (3), the
Secretary may enter into agreements with 1 or more obligors to
make secured loans, the proceeds of which shall be used—
"(A) to finance eligible project costs of any project selected
under section 602;
"(B) to refinance interim construction financing of eligible
project costs of any project selected under section 602;
"(C) to refinance existing Federal credit instruments for
rural infrastructure projects; or
"(D) to refinance long-term project obligations or Federal
credit instruments, if the refinancing provides additional
funding capacity for the completion, enhancement, or
expansion of any project that—
"(i) is selected under section 602; or
"(ii) otherwise meets the requirements of section
602.
"(2) LIMITATION ON REFINANCING OF INTERIM CONSTRUCTION
FINANCING.—A loan under paragraph (1) shall not refinance
interim construction financing under paragraph (1)(B)
later than 1 year after the date of substantial completion of the
project.
"(3) RISK ASSESSMENT.—Before entering into an agreement
under this subsection, the Secretary, in consultation with the
Director of the Office of Management and Budget, shall determine
an appropriate capital reserve subsidy amount for each secured
loan, taking into account each rating letter provided by
an agency under section 602(b)(3)(B).
"(b) TERMS AND LIMITATIONS.—
"(1) IN GENERAL.—A secured loan under this section with
respect to a project shall be on such terms and conditions and
contain such covenants, representations, warranties, and requirements
(including requirements for audits) as the Secretary
determines to be appropriate.
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"(2) MAXIMUM AMOUNT.—The amount of a secured loan
under this section shall not exceed the lesser of 49 percent of the
reasonably anticipated eligible project costs or if the secured
loan does not receive an investment grade rating, the amount
of the senior project obligations.
"(3) PAYMENT.—A secured loan under this section—
"(A) shall—
"(i) be payable, in whole or in part, from—
"(I) tolls;
"(II) user fees;
"(III) payments owing to the obligor under a
public-private partnership; or
"(IV) other dedicated revenue sources that also
secure the senior project obligations; and
"(ii) include a rate covenant, coverage requirement,
or similar security feature supporting the project obligations;
and
"(B) may have a lien on revenues described in subparagraph
(A), subject to any lien securing project obligations.
"(4) INTEREST RATE.—
"(A) IN GENERAL.—Except as provided in subparagraphs
(B) and (C), the interest rate on a secured loan
under this section shall be not less than the yield on United
States Treasury securities of a similar maturity to the maturity
of the secured loan on the date of execution of the
loan agreement.
"(B) RURAL INFRASTRUCTURE PROJECTS.—
"(i) IN GENERAL.—The interest rate of a loan offered
to a rural infrastructure project under this chapter
shall be at 1⁄2 of the Treasury Rate in effect on the
date of execution of the loan agreement.
"(ii) APPLICATION.—The rate described in clause (i)
shall only apply to any portion of a loan the subsidy
cost of which is funded by amounts set aside for rural
infrastructure projects under section 608(a)(3)(A).
"(C) LIMITED BUYDOWNS.—The interest rate of a secured
loan under this section may not be lowered by more
than the lower of—
"(i) 11⁄2 percentage points (150 basis points); or
"(ii) the amount of the increase in the interest rate.
"(5) MATURITY DATE.—The final maturity date of the secured
loan shall be the lesser of—
"(A) 35 years after the date of substantial completion of
the project; and
"(B) if the useful life of the capital asset being financed
is of a lesser period, the useful life of the asset.
"(6) NONSUBORDINATION.—
"(A) IN GENERAL.—Except as provided in subparagraph
(B), the secured loan shall not be subordinated to the
claims of any holder of project obligations in the event of
bankruptcy, insolvency, or liquidation of the obligor.
"(B) PREEXISTING INDENTURE.—
"(i) IN GENERAL.—The Secretary shall waive the requirement
under subparagraph (A) for a public agency
borrower that is financing ongoing capital programs
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and has outstanding senior bonds under a preexisting
indenture, if—
"(I) the secured loan is rated in the A category
or higher;
"(II) the secured loan is secured and payable
from pledged revenues not affected by project performance,
such as a tax-backed revenue pledge or
a system-backed pledge of project revenues; and
"(III) the TIFIA program share of eligible
project costs is 33 percent or less.
"(ii) LIMITATION.—If the Secretary waives the nonsubordination
requirement under this subparagraph—
"(I) the maximum credit subsidy to be paid by
the Federal Government shall be not more than 10
percent of the principal amount of the secured
loan; and
"(II) the obligor shall be responsible for paying
the remainder of the subsidy cost, if any.
"(7) FEES.—The Secretary may establish fees at a level sufficient
to cover all or a portion of the costs to the Federal Government
of making a secured loan under this section.
"(8) NON-FEDERAL SHARE.—The proceeds of a secured loan
under this chapter may be used for any non-Federal share of
project costs required under this title or chapter 53 of title 49,
if the loan is repayable from non-Federal funds.
"(9) MAXIMUM FEDERAL INVOLVEMENT.—The total Federal
assistance provided on a project receiving a loan under this
chapter shall not exceed 80 percent of the total project cost.
"(c) REPAYMENT.—
"(1) SCHEDULE.—The Secretary shall establish a repayment
schedule for each secured loan under this section based on—
"(A) the projected cash flow from project revenues and
other repayment sources; and
"(B) the useful life of the project.
"(2) COMMENCEMENT.—Scheduled loan repayments of principal
or interest on a secured loan under this section shall commence
not later than 5 years after the date of substantial completion
of the project.
"(3) DEFERRED PAYMENTS.—
"(A) IN GENERAL.—If, at any time after the date of substantial
completion of the project, the project is unable to
generate sufficient revenues to pay the scheduled loan repayments
of principal and interest on the secured loan, the
Secretary may, subject to subparagraph (C), allow the obligor
to add unpaid principal and interest to the outstanding
balance of the secured loan.
"(B) INTEREST.—Any payment deferred under subparagraph
(A) shall—
"(i) continue to accrue interest in accordance with
subsection (b)(4) until fully repaid; and
"(ii) be scheduled to be amortized over the remaining
term of the loan.
"(C) CRITERIA.—
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"(i) IN GENERAL.—Any payment deferral under
subparagraph (A) shall be contingent on the project
meeting criteria established by the Secretary.
"(ii) REPAYMENT STANDARDS.—The criteria established
pursuant to clause (i) shall include standards
for reasonable assurance of repayment.
"(4) PREPAYMENT.—
"(A) USE OF EXCESS REVENUES.—Any excess revenues
that remain after satisfying scheduled debt service requirements
on the project obligations and secured loan and all
deposit requirements under the terms of any trust agreement,
bond resolution, or similar agreement securing
project obligations may be applied annually to prepay the
secured loan without penalty.
"(B) USE OF PROCEEDS OF REFINANCING.—The secured
loan may be prepaid at any time without penalty from the
proceeds of refinancing from non-Federal funding sources.
"(d) SALE OF SECURED LOANS.—
"(1) IN GENERAL.—Subject to paragraph (2), as soon as
practicable after substantial completion of a project and after
notifying the obligor, the Secretary may sell to another entity or
reoffer into the capital markets a secured loan for the project if
the Secretary determines that the sale or reoffering can be made
on favorable terms.
"(2) CONSENT OF OBLIGOR.—In making a sale or reoffering
under paragraph (1), the Secretary may not change the original
terms and conditions of the secured loan without the written
consent of the obligor.
"(e) LOAN GUARANTEES.—
"(1) IN GENERAL.—The Secretary may provide a loan guarantee
to a lender in lieu of making a secured loan under this
section if the Secretary determines that the budgetary cost of the
loan guarantee is substantially the same as that of a secured
loan.
"(2) TERMS.—The terms of a loan guarantee under paragraph
(1) shall be consistent with the terms required under this
section for a secured loan, except that the rate on the guaranteed
loan and any prepayment features shall be negotiated between
the obligor and the lender, with the consent of the Secretary.
"§ 604. Lines of credit
"(a) IN GENERAL.—
"(1) AGREEMENTS.—Subject to paragraphs (2) through (4),
the Secretary may enter into agreements to make available to
1 or more obligors lines of credit in the form of direct loans to
be made by the Secretary at future dates on the occurrence of
certain events for any project selected under section 602.
"(2) USE OF PROCEEDS.—The proceeds of a line of credit
made available under this section shall be available to pay debt
service on project obligations issued to finance eligible project
costs, extraordinary repair and replacement costs, operation
and maintenance expenses, and costs associated with unexpected
Federal or State environmental restrictions.
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"(3) RISK ASSESSMENT.—Before entering into an agreement
under this subsection, the Secretary, in consultation with the
Director of the Office of Management and Budget and each rating
agency providing a preliminary rating opinion letter under
section 602(b)(3), shall determine an appropriate capital reserve
subsidy amount for each line of credit, taking into account the
rating opinion letter.
"(4) INVESTMENT-GRADE RATING REQUIREMENT.—The funding
of a line of credit under this section shall be contingent on
the senior obligations of the project receiving an investment grade
rating from 2 rating agencies.
"(b) TERMS AND LIMITATIONS.—
"(1) IN GENERAL.—A line of credit under this section with
respect to a project shall be on such terms and conditions and
contain such covenants, representations, warranties, and requirements
(including requirements for audits) as the Secretary
determines to be appropriate.
"(2) MAXIMUM AMOUNTS.—The total amount of a line of
credit under this section shall not exceed 33 percent of the reasonably
anticipated eligible project costs.
"(3) DRAWS.—Any draw on a line of credit under this section
shall—
"(A) represent a direct loan; and
"(B) be made only if net revenues from the project (including
capitalized interest, but not including reasonably
required financing reserves) are insufficient to pay the costs
specified in subsection (a)(2).
"(4) INTEREST RATE.—Except as provided in subparagraphs
(B) and (C) of section 603(b)(4), the interest rate on a direct
loan resulting from a draw on the line of credit shall be not less
than the yield on 30-year United States Treasury securities, as
of the date of execution of the line of credit agreement.
"(5) SECURITY.—A line of credit issued under this section—
"(A) shall—
"(i) be payable, in whole or in part, from—
"(I) tolls;
"(II) user fees;
"(III) payments owing to the obligor under a
public-private partnership; or
"(IV) other dedicated revenue sources that also
secure the senior project obligations; and
"(ii) include a rate covenant, coverage requirement,
or similar security feature supporting the project obligations;
and
"(B) may have a lien on revenues described in subparagraph
(A), subject to any lien securing project obligations.
"(6) PERIOD OF AVAILABILITY.—The full amount of a line of
credit under this section, to the extent not drawn upon, shall be
available during the 10-year period beginning on the date of
substantial completion of the project.
"(7) RIGHTS OF THIRD-PARTY CREDITORS.—
"(A) AGAINST FEDERAL GOVERNMENT.—A third-party
creditor of the obligor shall not have any right against the
Federal Government with respect to any draw on a line of
credit under this section.
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"(B) ASSIGNMENT.—An obligor may assign a line of
credit under this section to—
"(i) 1 or more lenders; or
"(ii) a trustee on the behalf of such a lender.
"(8) NONSUBORDINATION.—
"(A) IN GENERAL.—Except as provided in subparagraph
(B), a direct loan under this section shall not be subordinated
to the claims of any holder of project obligations in
the event of bankruptcy, insolvency, or liquidation of the
obligor.
"(B) PRE-EXISTING INDENTURE.—
"(i) IN GENERAL.—The Secretary shall waive the requirement
of subparagraph (A) for a public agency borrower
that is financing ongoing capital programs and
has outstanding senior bonds under a preexisting indenture,
if—
"(I) the line of credit is rated in the A category
or higher;
"(II) the TIFIA program loan resulting from a
draw on the line of credit is payable from pledged
revenues not affected by project performance, such
as a tax-backed revenue pledge or a system-backed
pledge of project revenues; and
"(III) the TIFIA program share of eligible
project costs is 33 percent or less.
"(ii) LIMITATION.—If the Secretary waives the nonsubordination
requirement under this subparagraph—
"(I) the maximum credit subsidy to be paid by
the Federal Government shall be not more than 10
percent of the principal amount of the secured
loan; and
"(II) the obligor shall be responsible for paying
the remainder of the subsidy cost.
"(9) FEES.—The Secretary may establish fees at a level sufficient
to cover all or a portion of the costs to the Federal Government
of providing a line of credit under this section.
"(10) RELATIONSHIP TO OTHER CREDIT INSTRUMENTS.—A
project that receives a line of credit under this section also shall
not receive a secured loan or loan guarantee under section 603
in an amount that, combined with the amount of the line of
credit, exceeds 49 percent of eligible project costs.
"(c) REPAYMENT.—
"(1) TERMS AND CONDITIONS.—The Secretary shall establish
repayment terms and conditions for each direct loan under this
section based on—
"(A) the projected cash flow from project revenues and
other repayment sources; and
"(B) the useful life of the asset being financed.
"(2) TIMING.—All repayments of principal or interest on a
direct loan under this section shall be scheduled—
"(A) to commence not later than 5 years after the end
of the period of availability specified in subsection (b)(6);
and
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"(B) to conclude, with full repayment of principal and
interest, by the date that is 25 years after the end of the period
of availability specified in subsection (b)(6).
"§ 605. Program administration
"(a) REQUIREMENT.—The Secretary shall establish a uniform
system to service the Federal credit instruments made available
under this chapter.
"(b) FEES.—The Secretary may collect and spend fees, contingent
on authority being provided in appropriations Acts, at a level
that is sufficient to cover—
"(1) the costs of services of expert firms retained pursuant
to subsection (d); and
"(2) all or a portion of the costs to the Federal Government
of servicing the Federal credit instruments.
"(c) SERVICER.—
"(1) IN GENERAL.—The Secretary may appoint a financial
entity to assist the Secretary in servicing the Federal credit instruments.
"(2) DUTIES.—A servicer appointed under paragraph (1)
shall act as the agent for the Secretary.
"(3) FEE.—A servicer appointed under paragraph (1) shall
receive a servicing fee, subject to approval by the Secretary.
"(d) ASSISTANCE FROM EXPERT FIRMS.—The Secretary may retain
the services of expert firms, including counsel, in the field of
municipal and project finance to assist in the underwriting and
servicing of Federal credit instruments.
"(e) EXPEDITED PROCESSING.—The Secretary shall implement
procedures and measures to economize the time and cost involved
in obtaining approval and the issuance of credit assistance under
this chapter.
"§ 606. State and local permits
"The provision of credit assistance under this chapter with respect
to a project shall not—
"(1) relieve any recipient of the assistance of any obligation
to obtain any required State or local permit or approval with
respect to the project;
"(2) limit the right of any unit of State or local government
to approve or regulate any rate of return on private equity invested
in the project; or
"(3) otherwise supersede any State or local law (including
any regulation) applicable to the construction or operation of
the project.
"§ 607. Regulations
"The Secretary may promulgate such regulations as the Secretary
determines to be appropriate to carry out this chapter.
"§ 608. Funding
"(a) FUNDING.—
"(1) SPENDING AND BORROWING AUTHORITY.—Spending and
borrowing authority for a fiscal year to enter into Federal credit
instruments shall be promptly apportioned to the Secretary on
a fiscal-year basis.
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"(2) REESTIMATES.—If the subsidy cost of a Federal credit
instrument is reestimated, the cost increase or decrease of the
reestimate shall be borne by, or benefit, the general fund of the
Treasury, consistent with section 504(f) the Congressional
Budget Act of 1974 (2 U.S.C. 661c(f)).
"(3) RURAL SET-ASIDE.—
"(A) IN GENERAL.—Of the total amount of funds made
available to carry out this chapter for each fiscal year, not
more than 10 percent shall be set aside for rural infrastructure
projects.
"(B) REOBLIGATION.—Any amounts set aside under
subparagraph (A) that remain unobligated by June 1 of the
fiscal year for which the amounts were set aside shall be
available for obligation by the Secretary on projects other
than rural infrastructure projects.
"(4) REDISTRIBUTION OF AUTHORIZED FUNDING.—
"(A) IN GENERAL.—Beginning in fiscal year 2014, on
April 1 of each fiscal year, if the cumulative unobligated
and uncommitted balance of funding available exceeds 75
percent of the amount made available to carry out this
chapter for that fiscal year, the Secretary shall distribute to
the States the amount of funds and associated obligation
authority in excess of that amount.
"(B) DISTRIBUTION.—The amounts and obligation authority
distributed under this paragraph shall be distributed,
in the same manner as obligation authority is distributed
to the States for the fiscal year, based on the proportion
that—
"(i) the relative share of each State of obligation
authority for the fiscal year; bears to
"(ii) the total amount of obligation authority distributed
to all States for the fiscal year.
"(C) PURPOSE.—Funds distributed under subparagraph
(B) shall be available for any purpose described in
section 133(b).
"(5) AVAILABILITY.—Amounts made available to carry out
this chapter shall remain available until expended.
"(6) ADMINISTRATIVE COSTS.—Of the amounts made available
to carry out this chapter, the Secretary may use not more
than 0.50 percent for each fiscal year for the administration of
this chapter.
"(b) CONTRACT AUTHORITY.—
"(1) IN GENERAL.—Notwithstanding any other provision of
law, execution of a term sheet by the Secretary of a Federal
credit instrument that uses amounts made available under this
chapter shall impose on the United States a contractual obligation
to fund the Federal credit investment.
"(2) AVAILABILITY.—Amounts made available to carry out
this chapter for a fiscal year shall be available for obligation
on October 1 of the fiscal year.
"§ 609. Reports to Congress
"(a) IN GENERAL.—On June 1, 2012, and every 2 years thereafter,
the Secretary shall submit to Congress a report summarizing
the financial performance of the projects that are receiving, or have
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received, assistance under this chapter (other than section 610), including
a recommendation as to whether the objectives of this chapter
(other than section 610) are best served by—
"(1) continuing the program under the authority of the Secretary;
"(2) establishing a Federal corporation or federally sponsored
enterprise to administer the program; or
"(3) phasing out the program and relying on the capital
markets to fund the types of infrastructure investments assisted
by this chapter (other than section 610) without Federal participation.
"(b) APPLICATION PROCESS REPORT.—
"(1) IN GENERAL.—Not later than December 1, 2012, and
annually thereafter, the Secretary shall submit to the Committee
on Transportation and Infrastructure of the House of
Representatives and the Committee on Environment and Public
Works of the Senate a report that includes a list of all of the
letters of interest and applications received from project sponsors
for assistance under this chapter (other than section 610)
during the preceding fiscal year.
"(2) INCLUSIONS.—
"(A) IN GENERAL.—Each report under paragraph (1)
shall include, at a minimum, a description of, with respect
to each letter of interest and application included in the report—
"(i) the date on which the letter of interest or application
was received;
"(ii) the date on which a notification was provided
to the project sponsor regarding whether the application
was complete or incomplete;
"(iii) the date on which a revised and completed
application was submitted (if applicable);
"(iv) the date on which a notification was provided
to the project sponsor regarding whether the project
was approved or disapproved; and
"(v) if the project was not approved, the reason for
the disapproval.
"(B) CORRESPONDENCE.—Each report under paragraph
(1) shall include copies of any correspondence provided to
the project sponsor in accordance with section 602(d).".
DIVISION B—PUBLIC TRANSPORTATION
SEC. 20001. SHORT TITLE.
This division may be cited as the "Federal Public Transportation
Act of 2012".
SEC. 20002. REPEALS.
(a) CHAPTER 53.—Chapter 53 of title 49, United States Code, is
amended by striking sections 5308, 5316, 5317, 5320, and 5328.
(b) TRANSPORTATION EQUITY ACT FOR THE 21ST CENTURY.—
Section 3038 of the Transportation Equity Act for the 21st Century
(49 U.S.C. 5310 note) is repealed.
(c) SAFETEA–LU.—The following provisions are repealed:
599
tegic Plan, encourages state freight plans and advisory committees,
and provides incentives for states that fund projects to improve
freight movement.
America fast forward
Given our massive investment needs and the limited funding
available, we need to find ways to better leverage Federal dollars
by encouraging additional non-Federal investment and helping to
accelerate the benefits of State and locally funded transportation
projects.
This conference report builds upon the success of the TIFIA
program to help communities leverage their transportation resources
and stretch Federal dollars further than they have been
stretched before. The conference report modifies the TIFIA program
by increasing funding for the program to $1 billion per year, by increasing
the maximum share of project costs from 33 percent to 49
percent, by allowing TIFIA to be used to support a related set of
projects, and by setting aside funding for projects in rural areas at
more favorable terms.
Gulf Coast restoration
The conference report modifies a Senate provision related to
Gulf Coast restoration known as the Resources and Ecosystems
Sustainability, Tourism Opportunities and Revived Economies of
the Gulf Coast States Act of 2012 (RESTORE Act). The provision
establishes the Gulf Coast Restoration Trust Fund and places in
the Trust Fund 80% of all civil penalties paid by responsible parties
in connection with the Deepwater Horizon oil spill. Funding
may be used to invest in projects and activities to restore the longterm
health of the coastal ecosystem and local economies in the
Gulf Coast Region, which includes the states of Mississippi, Louisiana,
Alabama, Florida, and Texas. A portion of the funds will be
allocated directly and equally to the five Gulf Coast states for ecological
and economic recovery along the coast. A portion will be provided
to the Gulf Coast Ecosystem Restoration Council established
by the bill to develop and fund a comprehensive plan for the restoration
of Gulf Coast ecosystems. A portion will be allocated
among the states using an impact-based formula to implement
state plans that have been approved by the Council. Finally, a portion
of the fines will be allocated to a Gulf Coast ecosystem restoration,
science, observation, monitoring and technology program and
for grants to nongovernmental entities for the establishment of
Gulf Coast centers of excellence.
Harbor maintenance
The Conference report modifies a Senate provision highlighting
the significance of the nation's ports for efficient movement of
goods and products and the need for increased investment in the
maintenance of these ports to promote the economic competitiveness
of the United States. The provision states the Sense of Congress
that the Administration should request and the Congress should
fully expend each year all of the revenues collected in the Harbor
Maintenance Trust Fund (HMTF) for the operation and maintenance
of the nation's federally maintained ports. The provision also
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